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Federal Act on the Exercise of Aliens’ Police, the Issue of Documents for Aliens and the Granting of Entry Permits

(2005 Aliens’ Police Act – Fremdenpolizeigesetz 2005)

Federal Law Gazette (FLG) I No. 100/2005 as Amended by FLG I No. 157/2005

 

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Section 2

Penal Provisions

Smuggling of Persons

Article 114. (1) Any person who knowingly assists in the unlawful entry or transit of an alien into or through a Member State of the European Union or neighbouring state of Austria shall be sentenced by the court to a term of imprisonment of up to one year.

(2) Any person who, with intent to unjustly enrich himself or a third person through payment made to that end, assists in the unlawful entry or transit of an alien into or through a Member State of the European Union or neighbouring state of Austria shall be sentenced by the court to a term of imprisonment of up to two years.

(3) Any person who has already been convicted within the last five years for smuggling of persons within the meaning of para (2) above shall be sentenced to a term of imprisonment of up to three years. A conviction by a foreign court in proceedings conforming to the principles of art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms shall be also deemed as such.

(4) Any person who commits the offence under para (2) above on a commercial basis (art. 70 of the CC) or in a manner that subjects the alien to a state of torture for a prolonged period of time, in particular during transport, shall be sentenced by the court to a term of imprisonment of six months up to five years.

(5) Any person who commits the offence under para (2) above as a member of a criminal organisation or in a manner that poses a threat to the life of the alien to whom the offence relates shall be sentenced by the court to a term of imprisonment of one year up to ten years.

(6) Aliens whose unlawful entry or transit is assisted by the offence shall not be punished as parties to the offence (art. 12 of the CC). Their deportion or deportation may be delayed where and for as long as this is necessary to question them on the facts of the case.

(7) In case of imminent danger, public security service officers shall be authorised to seize, on a provisional basis, any articles carried by the offender, or means of transport or containers used for the commission of the offence to guarantee recovery of proceeds (art. 20 of the CC), forfeiture (art. 20b of the CC) or confiscation (art. 26 of the CC). The cargo on board of the means of transport may be handed over to the holder of the vehicle registration document or his authorised representative. The court shall be notified of the measures taken without delay. (8) Proceedings in connection with the offence mentioned in para (1) above shall be conducted in courts of first instance.

 

Aiding and Abetting Unauthorised Residence

Article 115.

(1) Any person who, with intent to prevent the procedure for issue or enforcement of measures terminating residence, facilitates an alien’s unauthorised residence in the territory of a Member State of the European Union shall be sentenced by the court to a term of imprisonment of up to six months or to a fine of up to 360 daily units. Any person who exclusively performs activities within the framework of his professional duties as lawyer shall in no case be deemed to act unlawfully. The same shall apply to other persons entered in the list of defending counsels.

(2) Any person who, with intent to unjustly enrich himself or a third person through payment of more than a small amount made to that end, facilitates an alien’s unauthorised residence in the territory of a Member State of the European Union shall be sentenced by the court to a term of imprisonment of up to one year or to a fine of up to 360 daily units.

(3) Any person who commits the offence on a commercial basis shall be sentenced to a term of imprisonment of up to three years.

(4) The alien who benefited or was to benefit from aiding and abetting under para (1) or (2) above shall not be punished as a party to the offence.

(5) Proceedings in connection with the offences mentioned in paras (1) and (2) above shall be conducted in courts of first instance.

 

Exploitation of Aliens

Article 116.

(1) Any person who, with intent to generate a regular income for himself or a third person by making use of an alien’s special state of dependence, exploits such alien who is unlawfully resident in the federal territory, does not hold a work permit or is otherwise in a special state of dependence shall be sentenced by the court to a term of imprisonment of up to three years.

(2) Any person who, through such offence, puts an alien in distress or exploits a larger number of aliens shall be sentenced to a term of imprisonment of six months up to five years.

(3) Where the offence results in the death of an alien, the offender shall be sentenced to a term of imprisonment of one year up to ten years.

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